Bason v Revenue & Customs [2011] UKFTT 521 (TC)
[35]We were provided with a volume of documentation. The documents were all admitted in evidence no objection having been taken to any of the documents.[36]No witness statements were produced. The Facts[37]From the evidence we make the following findings of fact. (1)The Appellant purchased a property in Skelmersdale. (2)The purchase was completed on 29 January 2010. This was the Effective Date for SDLT purposes. This would require the return to be submitted i.e. by 28 February 2010. It was not shown that it was delivered by that date. (3) There was no evidence that HMRC had received the SDLT 1. We find on the balance of probabilities, that HMRC did not receive that SDLT 1 and not within the required period. We find this as a primary fact i.e. the SDLT 1 was not delivered to HMRC by the due date. (4)The Appellant said the SDLT 1 had been submitted on 29 January 2010. Unfortunately, there was no evidence to corroborate this. Accordingly, we find on the balance of probabilities, that it was not submitted on that date nor within the relevant period. We find this as a primary fact. (5)No evidence was led to show and/or corroborate that the document had been posted. Accordingly, we are unable to find that the letter and enclosure were posted as there is no compelling or other evidence on which to base such a finding. (6)HMRC said they had no evidence of receipt of the document. We accept this and so find. Consequently we are unable to find that the documents were delivered to HMRC within the relevant period. (7)The Appellant later submitted a return in respect of the property. We understand that this was because the Appellant had not received the SDLT 5 Certificate. This is hardly surprising if the SDLT 1 had not been received. (8)The Land Transaction Return for the purchase was received by HMRC on 31 March 2010. This was 32 days late. (9) We find that the only land transaction return in respect of the property was received more than 30 days after the effective date but within three months of the filing date. The Submissions of the Parties The Appellant’s Submissions in outline[38]In essence, the Appellant submitted that:(1) He had posted the return but it must have been lost in the post or elsewhere or otherwise gone astray:(2) He had done what was required and so there should be no penalty as it was unfair to punish him when he complied with what was required;(3) At any rate as the Appellant had done all he reasonably could in the circumstances he had a reasonable excuse and the penalty regime should not apply(4) Accordingly, the appeal should be allowed. HMRC’s Submissions in outline 39. In essence, HMRC submitted that: (1) There was no proof of posting of the return; (2) The copy letter was just that – it was not proof of posting; (3) Effectively, HMRC appeared to be saying, even if there were any proof of posting the position is governed by section 82 FA 2003 which allows HMRC to treat the return as not having been delivered or the document as not having been made or provided; (4) Accordingly, the penalty provisions were engaged and applied unless a reasonable excuse could be shown;(5) No reasonable excuse had been shown – delay or loss in the post is not a reasonable excuse;(6) Consequently, the appeal must be dismissed. Discussion 40. This case requires a number of questions to be considered in order to decide it. They include the following: (1) Has it been proved that the SDLT 1 was posted when it was claimed to be posted? (2) Was the return received more than 30 days after the date but within three months of it? (3) Is there any reason why the penalty provisions are not engaged such as there being a reasonable excuse? (4) Should any penalties be further mitigated? Posting proved? 41. There was no evidence led that showed that the SDLT 1 had actually been posted. It was asserted but not shown that it had been posted. There was no evidence of posting. 42. We accept that HMRC had no evidence of receipt and we so find. 43. In the circumstances we find that it has not been shown that the SDLT 1 had been posted when it was said to have been posted. We do so reminding ourselves that the standard of proof is the civil standard of balance of probabilities. However, applying that standard we still consider that it has not been shown that the SDLT 1 had been posted within the requisite period and we so find. 44. There was no evidence led to show that the letter had been mislaid by the Royal mail or by HMRC and we so find. 45. Even if it had been shown (which is not the case here) the position would have been covered by section 82 FA 2003 (set out above). This allows HMRC to treat a return as not having been delivered if it has been lost or destroyed. 46. We answer the question in the negative i.e. it has not been shown that the SDLT 1 was posted within the requisite period. Receipt of individual returns more than 30 days after date 47. It was not disputed that the return actually received by HMRC was received more than 30 days after the due date. 48. Accordingly, if there is no reasonable excuse the penalty provisions are engaged and apply. Reason why the penalty provisions are not engaged 49. The penalty provisions were thus engaged and applied unless a reasonable excuse within the statutory meaning could be shown. The onus is on the Appellant to do this. Given that we have found that it has not been shown that the SDLT 1 was posted in the requisite period it is hard to see how there could be a reasonable excuse in the present circumstances for not posting the letter No reasonable excuse other than, in effect, loss in the post was suggested or occurred to us. We find that the Appellant has not discharged the burden of showing reasonable excuse. Even if contrary to our finding and there was some reasonable excuse it did not exist throughout the relevant period and we so find. 50. Accordingly no reasonable excuse been shown and no reason has been shown why the penalty provisions should not apply. Consequently, they apply. Should any penalties be further mitigated? 51. We consider that the penalties imposed were reasonable and proportionate and we so find. We see no reason to alter them even if we could as they are flat rate penalties. We consider the amount determined to be appropriate and confirm the determination. Conclusion 52. We have found that: (1) it has not been proved that the first SDLT 1 had been posted or mislaid. Even if it had been shown (which it was not) section 82 Finance Act 2003 covers the position; (2) the one return that was received was received more than 30 days after the effective (but within three months) so the penalty provisions were engaged; (3) no reasonable excuse has been shown; (4) the penalties were reasonable and proportionate and should be confirmed. 53. We make these findings as findings of fact and to the extent we can we find them as primary fact. 54. Accordingly, the Appeal is dismissed on the facts. 55. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. ADRIAN SHIPWRIGHT TRIBUNAL JUDGE RELEASE DATE: 1 AUGUST 2011 [1] No exempt interests are involved here. [2] None of them is applicable here. [3] It was not suggested that there was substantial performance here. [4] None of the exceptions apply here. [5] As to rent charges being Estates or interests in land see section 1 Law of Property Act 1925 ("LPA") and section 7 (1) LPA added by the Scheduled to the Law of Property (Amendment) Act 1926 as amended and the Rent Charges Act 1977 [6] We also considered the case of Wing Hung Lai v Bale (Inspector of Taxes) [1999] STC (SCD) 238. in this context but did not find it assisted us. [7] This is seemingly the position here.